Opinion
611843/17
08-03-2018
NATIONSTAR MORTGAGE, Plaintiff, v. Robert A. GROSS, HSBC Bank Nevada, NA, Mortgage Electronic Registration Systems, Inc., IndyMac Bank, FSB, and "John Doe #1" to "John Doe #12", the last 12 names being fictitious and unknown to plaintiff, the person or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
RAS BORISKIN, LLC, 900 Merchants Concourse - Ste. 106, Westbury, NY 11590, Attys. For Plaintiff. RICHARD J. SULLIVAN, ESQ., PO Box 582, Pt. Jefferson, NY 11777, Atty. For Defendant Gross.
RAS BORISKIN, LLC, 900 Merchants Concourse - Ste. 106, Westbury, NY 11590, Attys. For Plaintiff.
RICHARD J. SULLIVAN, ESQ., PO Box 582, Pt. Jefferson, NY 11777, Atty. For Defendant Gross.
Thomas F. Whelan, J.
Upon the following papers numbered 1 to 8 read on this motion to appoint a referee to compute among other things ; Notice of Motion/Order to Show Cause and supporting papers 1 - 3 ; Notice of Cross Motion and supporting papers:; Opposing papers: 4-6 ; Reply papers 7-8 ; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 001) by plaintiff for, among other things, summary judgment as against the answering defendants, default judgments against the remaining defendants, amendment of the caption, the appointment of a referee to compute, and an Order declaring that the prior liens of defendants, Mortgage Electronic Registration Systems, Inc. and IndyMac Bank, be deemed satisfied, is granted in its entirety; and it is further
ORDERED that no deficiency judgment shall be sought or entered after the property is sold at foreclosure auction; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).
This is an action to foreclose a mortgage on residential property situate in Port Jefferson Station, NY. On July 30, 2007, Rose Gross borrowed $360,000.00 from the plaintiff's predecessor in interest and executed a promissory note and, together with Robert Gross, a mortgage. On September 30, 2009, Rose Gross executed a Home Affordable Modification Agreement (HAMP) that increased the principal balance of the existing mortgage to $367,720.46 and provided for a step interest rate beginning at 2%. Thereafter, on January 3, 2016, Rose Gross died. Monthly installment payments ceased on July 1, 2016 and no payments have been made since that time. This action was, therefore, commenced by filing a summons and complaint on June 23, 2017. On July 26, 2017, defendant, Robert Gross, filed an answer through counsel containing five affirmative defenses.
By this motion (# 001), the plaintiff seeks an order granting it summary judgment as against the answering defendant, default judgments against all non-appearing defendants, amendment of the caption, and the appointment of a referee to compute. Defendant, Robert Gross, has opposed the motion.
In the moving papers on this summary judgment motion, plaintiff addresses its burden of proof and refutes the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden (see HSBC Bank USA, Natl. Assn. v Espinal , 137 AD3d 1079, 28 NYS3d 107 [2d Dept 2016] ; U.S. Bank Natl. Assn. v Cox , 148 AD3d 692, 49 NYS3d 527 [2d Dept 2017] ). The burden then shifts to defendants (see Bank of America, N.A. v DeNardo , 151 AD3d 1008, 58 NYS3d 469 [2d Dept 2017] ) and it was incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses asserted in the answer or otherwise available to defendant (see Flagstar Bank v Bellafiore , 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012] ; Grogg Assocs. v South Rd. Assocs. , 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010] ; Wells Fargo Bank v Karla , 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010] ; Washington Mut. Bank v O'Connor , 63 AD3d 832,880 NYS2d 696 [2d Dept 2009] ; J.P. Morgan Chase Bank, NA v Agnello , 62 AD3d 662, 878 NYS2d 397 [2d Dept 2009] ; Aames Funding Corp. v Houston , 44 AD3d 692, 843 NYS2d 660 [2d Dept 2007] ).
Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR 3013, 3018[b] ; Katz v Miller , 120 AD3d 768, 991 NYS2d 346 [2d Dept 2014] ; Becher v Feller , 64 AD3 672, 677, 884 NYS2d 83 [2d Dept 2009] ; Cohen Fashion Opt., Inc. v V & M Opt., Inc. , 51 AD3d 619, 858 NYS2d 260 [2d Dept 2008] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v Baiden , 36 NY2d 539, 369 NYS2d 667 [1975] ; see also Madeline D'Anthony Enter., Inc. v Sokolowsky , 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012] ; Argent Mtge. Co., LLC v Mentesana , 79 AD3d 1079, 915 NYS2d 591[2d Dept 2010] ). Additionally, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Realty F Rockaway, Ltd. , 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013] ; Starkman v City of Long Beach , 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013] ).
The defendant's opposition notes that defendant did not sign the HAMP agreement, and alleges that plaintiff failed to name the heirs or executor of decedent Rose Gross. Additionally, the defendant challenges plaintiff's standing and service upon him. The Court addresses the allegations raised herein, however, in accordance with the above, all affirmative defenses raised in the answer and not addressed in the opposition are dismissed as abandoned (see JPMorgan Chase Bank, Natl. Assn. v Hua , 160 AD3d 821, 2018 WL 1833244 [2d Dept 2018] ).
First, with regards to defendant Robert Gross's signature on the HAMP document, the Court finds plaintiff's explanation that his signature was not required because the document "did not substantially alter the terms of the Mortgage" to be incredulous, as this statement belies the very text of the HAMP document, which modifies the maturity date, the principal balance, and the interest rate of the loan documents, all substantial elements of the loan. Additionally, Paragraph 4(A) of the HAMP document notes that all borrowers who signed the mortgage and note must sign the modification, with certain exceptions including if a borrower is deceased, or if the borrowers divorced and property was transferred to one borrower pursuant to the divorce decree.
Irrespective of whether Mr. Gross's signature was required on the HAMP document, however, Mr. Gross is a borrower and original signatory pursuant to the terms of the original mortgage dated July 30, 2007. As a result of the default in payment on that loan, Mr. Gross is a necessary party to the instant action (see RPAPL § 1311 ).
With respect to decedent Rose Gross's interest, a claimant may not bring a legal action against a person already deceased at the time of the commencement of such action, but instead, must proceed against the personal representative of the decedent's estate (see Jordan v City of New York , 23 AD3d 436, 807 NYS2d 595 [2d Dept 2005] ; see also Outing v Mathis , 304 AD2d 670, 757 NYS2d 483 [2d Dept 2003] ), or against those who have succeeded, by operation of law, to the interests of the decedent in the property that is encumbered by the mortgage (see HSBC Bank USA v. Ungar Family Realty Corp. , 111 AD3d 673, 974 NYS2d 583 [2d Dept 2013] ; DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd. , 51 AD3d 857, 859 NYS2d 221 [2d Dept 2008] ; Deutsche Bank Natl. Trust v Torres, 24 Misc 3d 1216[A], 2009 WL 2005599 [Suffolk County, Sup. Ct. 2009] ).
Due to the unique nature of foreclosure actions, however (see Jo Ann Homes v Dworetz , 25 NY2d 112, 302 NYS2d 799 [1969] ), courts have held that the personal representative of the estate of a deceased mortgagor, who died intestate and against whom no deficiency judgment is sought , is not a necessary party to a mortgage foreclosure action and that such action may be commenced or continued against the distributees of any such intestate mortgagor (see Winter v Kram , 3 AD2d 175, 159 NYS2d 417 [2d Dept 1957] ; see also Salamon Bros. Realty Corp. v Alvarez , 22 AD3d 482, 802 NYS2d 705 [2d Dept 2005] ; cf. Dime Sav. Bank of NY, FSB v Luna , 302 AD2d 558, 754 NYS2d 655 [2d Dept 2003] ). Accordingly, a foreclosing plaintiff may prosecute its claims against the distributees of a deceased mortgagor only where said mortgagor died intestate and no deficiency judgment is sought by the plaintiff in such action (see Financial Freedom Senior Funding Corp. v Rose , 64 AD3d 539, 883 NYS2d 546 [2d Dept 2009] ; Salamon Bros. Realty Corp. v Alvarez , 22 AD2d 482, supra ; Winter v Kram , 3 AD2d 175, supra ). Where the deceased mortgagor died testate, or where he or she was personally liable on the mortgage note or bond and the plaintiff seeks a deficiency judgment against him or her in its mortgage foreclosure complaint, the plaintiff cannot proceed against the distributees of the deceased mortgagor, but instead, must proceed against the personal representative of the estate of the deceased mortgagor (see Jordan v City of New York , 23 AD3d 436, supra ; Countrywide Home Loans, Inc. v Keys , 27 AD2d 247, 811 NYS2d 362 [1st Dept 2006] ; Dime Sav. Bank of NY, FSB v Luna , 302 AD2d 558, supra ).
Here, the plaintiff has not made a claim against the estate, heirs, or personal representatives of Rose Gross. Thus, upon application of the foregoing rules, plaintiff has demonstrated its intent to waive a deficiency judgment. The Court notes that plaintiff's request that the obligor be adjudged to pay any deficiency which may remain after foreclosure sale is moot. The plaintiff is hereby directed to note in the Judgment of Foreclosure and Sale that no deficiency judgment is to be sought after the foreclosure auction.
The defendant's remaining contentions challenging plaintiff's standing and whether jurisdiction has been obtained over defendant Gross are without merit. First, the standing defense has lost its significance and vitality with the advent of CPLR 3012-b. One of the various methods that standing may be established is by due proof that the plaintiff or its custodial agent was in possession of the note prior to the commencement of the action. The production of such proof is sufficient to establish, prima facie, the plaintiff's possession of the requisite standing to prosecute its claims for foreclosure and sale (see Aurora Loan Servs., LLC v Taylor , 25 NY3d 355, 12 NYS3d 612 [2015] ; Wells Fargo Bank, NA v Frankson , 157 AD3d 844, 66 NYS3d 529 [2d Dept 2018] ; U.S. Bank v Ehrenfeld , 144 AD3d 893, 41 NYS3d 269 [2d Dept 2016] ; JPMorgan Chase Bank, Natl. Assn. v Weinberger , 142 AD3d 643, 37 NYS3d 286 [2d Dept 2016] ; Citimortgage, Inc. v Klein , 140 AD3d 913, 33 NYS3d 432 [2d Dept 2016] ; U.S. Bank Natl. Assn. v Godwin , 137 AD3d 1260, 28 NYS3d 450 [2d Dept 2016] ; Wells Fargo Bank, N.A. v Joseph , 137 AD3d 896, 26 NYS3d 583 [2d Dept 2016] ; Emigrant Bank v Larizza , 129 AD3d 904, 13 NYS3d 129 [2d Dept 2015] ; Deutsche Bank Natl. Trust Co. v Whalen , 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013] ).
As occurred in this action, the plaintiff's attachment of a duly indorsed mortgage note to its complaint or to the certificate of merit required by CPLR 3012-b has been held to constitute due proof of the plaintiff's possession of the note prior to the commencement of the action and thus its standing to prosecute its claim for foreclosure and sale (see HSBC Bank USA, NA v Oscar , 161 AD3d 1055, ––– NYS3d –––– [2d Dept 2018], citing US Bank NA v Cohen , 156 AD3d 844, 846, 67 NYS3d 643 [2d Dept 2017] ; US Bank NA v Saravanan, 146 AD3d 1010, 1011, 45 NYS3d 547 [2d Dept 2017] ; JPMorgan Chase Bank, NA v Weinberger , 142 AD3d 643, 645, 37 NYS3d 286 [2d Dept 2017] ; Deutsche Bank Natl. Trust Co. v Leigh , 137 AD3d 841, 842, 28 NYS3d 86 [2d Dept 2016] ; Emigrant Bank v Larizza , 129 AD3d 904, supra ; Nationstar Mtge., LLC v Catizone , 127 AD3d 1151, 1152, 9 NYS3d 315 [2015] ; see also HSBC Bank USA v Ozcan , 154 AD2d 822, 64 NYS3d 38 [2d Dept 2017] ).
Here, the plaintiff alleged in its complaint that it was the current holder of the note and attached a copy of the note to the complaint. The plaintiff, through its submissions, has thus demonstrated the requisite possession of the note prior to the commencement of the action (see HSBC Bank USA, NA v Oscar , 161 AD3d 1055, supra; Wells Fargo Bank, NA v Frankson , 157 AD3d 844, supra; US Bank Natl. Assn. v Richards , 151 AD3d 1001, 57 NYS3d 509 [2d Dept 2017] ; Silvergate Bank v Calkula Prop., Inc ., 150 AD3d 1295, 56 NYS3d 189 [2d Dept 2017] ; Central Mtge. Co. v Jahnsen , 150 AD3d 661, 56 NYS3d 107 [2d Dept 2017] ; Bank of America, N.A. v Barton , 149 AD3d 676, 50 NYS3d 546 [2d Dept 2017] ). Pursuant to CPLR 3212(g), the court hereby declares that the issue of the plaintiff's standing is hereby resolved in favor of the plaintiff for all purposes of this action, and defendant's First Affirmative Defense is stricken.
The defendant alleges that plaintiff does not have jurisdiction by reason of defendant's "incompetency" and that he was not properly served with the summons and complaint. The Court rejects these allegations. The defendant waived any service-based objections raised in his July 26, 2016 answer as he failed to move on that ground within sixty days after service of the answer (see CPLR § 3211[e] ["an objection that the summons and complaint ... was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading"] ). Defendant's application on this basis should have been made by September 24, 2016. As over twenty months have passed, this portion of the opposition is disregarded.
Based on the above, plaintiff has satisfied its prima facie burden on this summary judgment motion (see Nationstar Mtge., LLC v LaPorte , ––– AD3d ––––, 2018 WL 2945632 [2d Dept 2018] ; HSBC Bank USA v Ozcan , 154 AD2d 822, supra ; HSBC Bank USA, Natl. Assn. v Espinal , 137 AD3d 1079, 28 NYS3d 107 [2d Dept 2016], and the defendant has failed to raise any issue of fact.
The plaintiff is, therefore, entitled to the relief sought (see Baron Assoc., LLC v Garcia Group Enters., Inc. , 96 AD3d 793 [2d Dept 2012] ; Wells Fargo Bank Minn., Natl. Assn. v Perez , 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007], lv dismissed 10 NY3d 791 [2008] ).
As the defendant has failed to raise a material issue of fact in opposition, plaintiff is entitled to the relief sought (see Baron Assoc., LLC v Garcia Group Enters., Inc. , 96 AD3d 793 [2d Dept 2012] ; Wells Fargo Bank Minn., Natl. Assn. v Perez , 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007], lv dismissed 10 NY3d 791 [2008] ).
The Court grants plaintiff's application for judgment on its second cause of action, which seeks a declaration that the prior liens of defendants, Mortgage Electronic Registration Systems, Inc. and IndyMac Bank, be deemed satisfied. These claims are aimed at extinguishing, by judicial declaration, the superior and prior lien of said defendant pursuant to RPAPL § 1501. Plaintiff's moving papers, which included the HUD-1 Settlement Statement demonstrating payment to IndyMac, established that plaintiff possesses cognizable claims to declare the invalidity and extinguishment of the liens and interests of the defendants listed in the plaintiff's second cause of action (see CPLR 3215[f] ; RPAPL §§ 1515 ; 1519). Accordingly, this portion of the motion is granted.
The plaintiff's motion (# 001) is granted in its entirety. The Court simultaneously signs the proposed Order, as modified.